Judicial Selection: A Look at California

Most states across the country use one of a handful of different methods to select their judges, including popular elections and merit selection. California operates a little differently.

August 7, 2017

Reece Trevor

Most states across the country use one of a handful of different methods to select their judges. A majority rely on popular elections, with judges running for their seats much like any other elected official. A smaller number use a system known as “merit selection,” where the state’s governor appoints judges from a slate of candidates pre-approved by a nominating committee. Those judges then typically stand for periodic retention elections, up-or-down votes as to whether they should retain their seats.

However, California operates a little differently, at least where its appellate courts are concerned. California’s governor appoints judges to the Court of Appeal and Supreme Court, but a state bar commission reviews his or her choices and a three-member panel must vote to confirm them. Unlike in true “merit selection” states, the commission reviews candidates only after the governor has nominated them. Then, at the end of their twelve-year terms, judges stand for retention elections to keep their seats.

A new study from the Center on the Legal Profession at Stanford Law School, in partnership with the Brennan Center, investigates whether other states could draw lessons from California’s hybrid model — especially amid rising concerns that judges facing a tough election campaign may decide cases based on popularity, not on the law.

Most observers of the California appointment system are indeed satisfied with its performance. They generally consider the judges it produces to be fair-minded, independent, and well-qualified. California’s appellate judiciary is also among the most diverse in the nation, though it still falls far short of reflecting the state’s overall diversity. Controversial decisions rarely result in calls to oust a judge (though there are exceptions) and the state’s retention elections don’t attract the kind of big money and negative advertising that cause concern elsewhere in the country.

On closer inspection, though, it’s not clear that other jurisdictions could reap the same benefits just by adopting California’s hybrid system. The system’s relative success might have more to do with the people who implement it and with California’s unique demographics than with its structural features.

Although California law requires two separate commissions to weigh in on a nomination, these bodies rarely derail a nomination. The first commission, made up of lawyers selected by the state bar association, evaluates nominees and ranks them on a scale of “exceptionally well qualified” to “not qualified” — but its recommendations are nonbinding and it’s uncommon for anyone outside the governor’s office to see them. The second commission, consisting of two senior state judges and the attorney general, can veto a nominee, but it’s only done so on a handful of occasions throughout its eight-decade history. And sustained efforts to remove a sitting judge from the appellate bench are exceedingly rare, though one high-profile campaign to recall three Supreme Court justices succeeded in 1984 and continues to loom large in the judiciary’s collective memory.

As a result, California’s governor has far more influence than any other actor in selecting judges. Most of the selection process takes place behind closed doors, guided by aides and advisors. All of this discretion isn’t always a bad thing; for instance, it helped allow Gov. Jerry Brown to embark on an ambitious project to place more women and people of color on the appellate bench during his first term in the late 1970s and early ‘80s. The commissions might also affect who a governor chooses to nominate in the first place, since the governor knows his or her choices will receive some official scrutiny and that he or she might incur political costs for selecting a candidate without strong qualifications or who is far outside the mainstream.

But at the end of the day, California offers few formal structural mechanisms to prevent a determined governor from choosing judges as he or she sees fit, or to stop a concerted effort to defeat a qualified but unpopular judge at the ballot box. Its experience highlights the importance — and potential fragility — of political culture and norms in shaping a state’s judicial selection system. It stands as a powerful reminder that, when it comes to judicial selection, one size is unlikely to fit all.